REED v. DICK (1988)

Defendant Ronald C. Dick (Dick) and others appeal from a judgment, based on a jury's verdict for $272,000 in favor of plaintiffs, in their action founded on Penal Code section 632 of California's Invasion of Privacy Act (the Act), which purports to proscribe eavesdropping, interception, and recording by electronic devices of confidential telephone communications, and fixes civil and criminal penalties therefor.

The material factual-procedural context of the case may reasonably be narrowed to the following.

Defendant Ronald C. Dick was a recording “buff.”   He was addicted to recording all telephone calls, incoming and outgoing.   Over the years he had recorded, apparently as a memory prod, about 6,000 such telephone calls, 98 of which were made from or to plaintiffs.   Many of such telephone calls were made when the call's intended recipient was busy or not present and a clerk or secretary was asked to take a message, or to tell the intended recipient of the call.   For a time defendant Dick and plaintiff Reed were business friends.   But the friendship finally ceased, and the two became involved in litigation with each other.   In the course of that litigation, Reed learned of Dick's habit of recording, which led to the instant litigation.   And in the instant litigation, following a jury trial, judgment was entered for plaintiffs in the statutory amount of $3,000 for substantially each of the above noted 98 recorded telephone calls.   The total judgment was $272,000.   The jury, under the trial court's instructions, had found liability of defendants, and the court determined the amount of damages.   The damages, for some reason now irrelevant, were fixed at an amount slightly less than the statutory $3,000 for each of the claimed violations.

We perceive neither evidence nor contention of actual, or compensatory, damages suffered by plaintiffs.   They appear to rely exclusively on penal damages of $3,000 for each violation of the Act, as provided by Penal Code section 637.2.   It thus appears that the recording of the telephone calls by Dick had harmed no one.

Plaintiff Reed and the other plaintiffs have also appealed;  they seek the full measure of $3,000 for each of the 98 telephone calls.

We shall reverse the judgment against Dick and his fellow defendants for the following reasons.

We state the material portions of the Act as they are apposite to the issues of the appeal.

The Act's preamble (Pen.Code, § 630) recites:

“The Legislature hereby declares that advances in science and technology have led to the development of new devices and techniques for the purpose of eavesdropping upon private communications and that the invasion of privacy resulting from the continual and increasing use of such devices and techniques has created a serious threat to the free exercise of personal liberties and cannot be tolerated in a free and civilized society.   The Legislature by this chapter intends to protect the right of privacy of the people of this state․”  (Our emphasis.)

The Act then forbids wiretapping (Pen.Code, § 631), a matter with which we are not here concerned.

Penal Code section 632 of the Act, upon which the instant action is based, provides the following:

“(a) Every person who, intentionally and without the consent of all parties to a confidential communication, by means of any electronic amplifying or recording device, eavesdrops upon or records [our emphasis] such confidential communication, whether such communication is carried on among such parties in the presence of one another or by means of a ․, telephone or other device, except a radio, shall be punishable by fine not exceeding two thousand five hundred dollars ($2,500), or by imprisonment ․ in the state prison, or by both such fine and imprisonment ․ in the state prison․

“(c) The term ‘confidential communications' includes any communication carried on in such circumstances as may reasonably indicate that any party to such communication desires it to be confined to such parties.”

And the Act (Pen.Code, § 637.2) provides:

“Any person who has been injured by a violation of this chapter may bring an action against the person who committed the violation for the greater of the following amounts:

“(1) Three thousand dollars ($3,000).

“(2) Three times the amount of actual damages, if any, sustained by the plaintiff․

“It is not a necessary prerequisite to an action pursuant to this section that the plaintiff has suffered, or be threatened with, actual damages.”

It will be noted that the Act is a penal statute.   It provides punishment for each violation by both fine and imprisonment in the state prison, and also for penal damages (a penalty) to one who brings an action for its enforcement.   This, for conduct which the highest courts of the state and nation have described as “the innocent use of recording equipment” (People v. Superior Court (Smith) (1969) 70 Cal.2d 123, 134, 74 Cal.Rptr. 294, 449 P.2d 230), and “conduct which is wholly innocent and ordinary.”  (Rathbun v. United States (1957) 355 U.S. 107, 111, 78 S.Ct. 161, 164, 2 L.Ed.2d 134.)

The Act is ambiguous, as applied to the conduct of Dick.

The Act (Pen.Code, § 630), as noted, expressly states that the “Legislature by this [Act] intends to protect the right of privacy of the people of this state.”   Yet, in respect of the conduct of Dick, it has now been repeatedly held that such conduct involved no “invasion of privacy.”   (People v. Murphy (1972) 8 Cal.3d 349, 358–359, 105 Cal.Rptr. 138, 503 P.2d 594;  People v. Malotte (1956) 46 Cal.2d 59, 64, 292 P.2d 517;  People v. Cooks (1983) 141 Cal.App.3d 224, 274, fn. 44, 190 Cal.Rptr. 211;  People v. Montgomery (1976) 61 Cal.App.3d 718, 731–732, 132 Cal.Rptr. 558;  People v. Ayers (1975) 51 Cal.App.3d 370, 374–378, 124 Cal.Rptr. 283.)

Moreover, the Act (Pen.Code, § 637.2) provides that “any person injured by a violation of this chapter may bring an action,” whereas a few sentences later it states that “it is not a necessary prerequisite to an action pursuant to this section that the plaintiff has suffered, or be threatened with, actual damages.”  (Our emphasis.)  (“Damages connote the character of relief afforded to an injured party for the injury suffered.”  Zikratch v. Stillwell (1961) 196 Cal.App.2d 535, 543, 16 Cal.Rptr. 660;  our emphasis.)

And, the Act is replete with statements that it applies only to “confidential communications.”  Yet as applied to Dick he was held liable under it for communications which manifestly were in fact not confidential;  typical of such communications was the following.

“Secretary:  Geothermal.

“Dick:  Yes, Domenic Falcone, please.

“Secretary:  All right, just a moment.

“Dick:  Thank you.

“Secretary:  He's on the other line, would you like to hold or shall I have him call you back?

“Dick:  Yeah, he can call me back, uh, my number 472–2118.

“Secretary:  Okay.

“Dick:  Area code 415.

“Secretary:  Ronald (Dick), okay very good.

“Dick:  Thank you.”

“When the language of the section is on its face ambiguous [our emphasis] or leaves doubt, however, the court must resort to extrinsic aids to ascertain the purpose behind the statute and give the provision a judicially created meaning commensurate with that purpose.”  (Morse v. Municipal Court (1974) 13 Cal.3d 149, 156, 118 Cal.Rptr. 14, 529 P.2d 46.)

“ ‘The requirement of a reasonable degree of certainty in legislation, especially in the criminal law, is a well established element of the guarantee of due process of law.  “No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes.   All are entitled to be informed as to what the State commands or forbids․” ’ ”  (People v. Belous (1969) 71 Cal.2d 954, 960, 80 Cal.Rptr. 354, 458 P.2d 194.)

“In resolving [an] ambiguity, we are guided by well-settled principles of statutory interpretation.  ‘[W]hen language which is reasonably susceptible of two constructions is used in a penal law ordinarily that construction which is more favorable to the offender will be adopted.  [¶ ] The defendant is entitled to the benefit of every reasonable doubt, whether it arise out of a question of fact, or as to the true interpretation of words or the construction of language used in a statute.’  ․ Furthermore, when interpreting a statute, if its provisions are unclear, its purpose is paramount:  we ‘should ascertain the intent of the Legislature so as to effectuate the purpose of the law.’ ․” (People v. Davis (1981) 29 Cal.3d 814, 828, 176 Cal.Rptr. 521, 633 P.2d 186, and see authority there collected.)

We consider the intent and purpose of the Legislature in its passage of the Act.

As has been noted, the California Legislature, in the clearest of language (Pen.Code, § 630), has stated:  “The Legislature by this chapter intends to protect the right of privacy [our emphasis] of the people of this state.”   And as has been pointed out, no right of privacy exists as against a party to a telephone communication.   Moreover, in the passage of the Act the Legislative “purpose ” was stated as the prevention of “eavesdropping. ”  (Pen.Code, § 630.)   Here the Act as applied to Dick furthered neither the intent, nor purpose, of the Legislature.   For, as by now we have repetitively pointed out, no right of privacy exists as against a party to a telephone communication.   And the declared purpose of the Act was to prevent “eavesdropping,” which here did not occur.

We consider other authority deemed apposite to the case before us.

Until 1967 the subject matter of Penal Code section 632 was generally covered by Penal Code section 653j, which provided as here relevant the following:

“Every person ․ not a party to the communication who, intentionally and without the consent of any party to a confidential communication, by means of any electronic amplifying or recording device, eavesdrops upon or records a confidential communication, whether such communication is carried on among such parties in the presence of one another or by means of a telegraph, telephone or other device, except a radio, shall be punished by imprisonment in the county jail not exceeding one year, or by fine not exceeding one thousand dollars ($1,000), or by both such fine and imprisonment.”  (Our emphasis.)

It will be seen that section 653j did not apply to a party to the communication, or where such a party had given consent to the recording.   People v. Superior Court (Smith), supra, 70 Cal.2d 123, 131, 74 Cal.Rptr. 294, 449 P.2d 230 so held:  “To establish the offense proscribed by ․ section 653j it must be shown that (1) a person as defined in subdivision (b) not [our emphasis] a party to the communication (2) intentionally and (3) without the consent of any party to the communication ․” recorded telephone calls.

“Such a reading [the court said, p. 134, 74 Cal.Rptr. 294, 449 P.2d 230] of the statute provides effective protection against ‘eavesdroppers' without penalizing the innocent use of recording equipment.”   And a violation of section 653j was only a misdemeanor.  (Pen.Code, § 17.)

Then in 1967 Penal Code section 653j was repealed and Penal Code section 632 covering the same general subject matter was added in its place.

It will thus be seen that where Penal Code section 653j operated only against nonparties to the communication, section 632 purported to extend its reach to a party to the communication where the other or others had not consented.   In this respect, our research has disclosed no statute anywhere similar to section 632.

The former statute, Penal Code section 653j, appears to have followed similar “privacy” statutes throughout the nation.   Such statutes are best exemplified by section 605 of Title 47, United States Code.   Using the synonym “intercepting,” instead of “eavesdropping,” upon telephone communications, it proscribes such “interception.”   Against claims of the statute's ambiguity federal courts have held as follows:

United States v. Bookie (7th Cir.1956) 229 F.2d 130, 132:  “[T]he weight of judicial authority impels us to conclude that there is no statutory violation when a message is transcribed or overheard with the receiver's consent at the time it reaches him.”

United States v. White (7th Cir.1956) 228 F.2d 832, 835:  “ ‘We are of the opinion that where, by means of an extension phone, or other device, a third party ‘listens in’ on a telephone conversation with the consent of one of the parties to the conversation, there is no interception of the communication, within the meaning of the statute.' ”

United States v. Sullivan (D.C.1956) 116 F.Supp. 480, 481–482:  “[Section 605] sought to preclude ․ any unauthorized person from surreptitiously attaching some mechanical apparatus to a telephone or telegraph wire and thereby listening to or otherwise intercepting communications passing over the wire, without the knowledge of the parties to the conversation or message as the case may be․  The problem presented in the case at bar is, however, far different.   It involves a situation in which one of the parties to the conversation permitted another person to listen to it.   Obviously, it could hardly have been within the contemplation of the Congress to prohibit such a practice, which is frequently followed for entirely legitimate and innocuous purposes․  [I]t is not unusual to attach a mechanical recording device to a telephone instrument․  Sometimes the other party to the conversation is informed that ․ a record is being made, but frequently he is not.   A doubtful construction of the statute that would prohibit such accepted usages should not be adopted.  ․ Obviously the Congress could not have intended to enact a ban on harmless recognized practices that are in the interests of accuracy and efficiency.   Its attention was directed to illegitimate disclosure of messages by confidential employees and to surreptitious wire tapping, which appeared abhorrent and pregnant with danger.”  (Our emphasis.)

United States v. Lewis (D.C.1950) 87 F.Supp. 970, 973, (reversed on other grounds Lewis v. United States (D.C.1950) 184 F.2d 394):  “In my opinion the statute is violated if a third person, unbeknownst to either party to the conversation, listens to what passes over the line and then divulges what he has heard, or, if the third person causes the conversation to be recorded by a mechanical or electrical device, without the knowledge of either party to the conversation, and then discloses what has been recorded.   I hold that it is not a violation of the statute if the conversation is recorded, manually, mechanically, or electrically, at the instance of or with the consent or knowing acquiescence of one of the parties to it.”

Following these cases in time, any doubt about interpretation of section 605 was resolved by the United States Supreme Court in Rathbun v. United States, supra, 355 U.S. 107, 109–111, 78 S.Ct. 161, 162–164:

“We hold that Section 605 was not violated in the case before us because there has been no ‘interception’ as Congress intended that the word be used.   Every statute must be interpreted in the light of reason and common understanding to reach the results intended by the legislature․  That principle would be violated if we attributed to Congress acceptance of the results that would occur here from the position argued by petitioner․  The clear inference is that one entitled to receive the communication may use it for his own benefit or have another use it for him.   The communication itself is not privileged, and one party may not force the other to secrecy merely by using a telephone.   It has been conceded by those who believe the conduct here violates Section 605 that either party may record the conversation and publish it․  The error in accepting petitioner's argument is brought into sharper focus by the fact that Section 605 is penal in nature, the first violation being punishable by a fine of not more than $10,000 or by imprisonment for a term not exceeding one year, or both.   For example, it follows from petitioner's argument that every secretary who listens to a business conversation at her employer's direction in order to record it would be marked as a potential federal criminal.   It is unreasonable to believe that Congress meant to extend criminal liability to conduct which is wholly innocent and ordinary.”  (Our emphasis.)

And, as also said by the high court, “[N]o argument can justify excluding an accurate version of a conversation that [a participant] could testify to from memory.”  (Lopez v. United States (1963) 373 U.S. 427, 439, 83 S.Ct. 1381, 1388, 10 L.Ed.2d 462.)

California's highest court has similarly held:  The purpose of such statutes is to give “effective protection against ‘eavesdroppers' without penalizing the innocent use of recording equipment.”  (People v. Superior Court (Smith), supra, 70 Cal.2d 123, 134, 74 Cal.Rptr. 294, 449 P.2d 230), and to “protect such persons from the ‘uninvited ear’ ․, not from a breach of trust by one of the parties to the conversation.”  (People v. Murphy, supra, 8 Cal.3d 349, 359, 105 Cal.Rptr. 138, 503 P.2d 594.)

From what has been said it appears to be a strong public policy to proscribe “eavesdropping” and “interception ” of confidential and private telephone communications, but not to hamper a party to such communications in their “recording.”

“Without the most cogent and convincing evidence, a court will never attribute to the Legislature the intent to disregard or overturn a sound rule of public policy.  [Citations.]  ‘Indeed, there is a presumption that the Legislature does not intend to enact any legislation in contravention of existing public policy.’ ”  (Interinsurance Exchange v. Ohio Cas. Ins. Co. (1962) 58 Cal.2d 142, 152, 23 Cal.Rptr. 592, 373 P.2d 640.)

We do not declare the Act or Penal Code section 632, unconstitutional as to Dick or otherwise.   Their constitutionality is presumed (Patton v. La Bree (1963) 60 Cal.2d 606, 609, 35 Cal.Rptr. 622, 387 P.2d 398), and appellate courts “ ‘do not reach constitutional questions unless absolutely required to do so.’ ”  (People v. Green (1980) 27 Cal.3d 1, 50, 164 Cal.Rptr. 1, 609 P.2d 468.)   Instead, following traditional rules of statutory construction we interpret the Act contrary to the construction applied by the superior court, thus to give effect to the express intent and purpose of the Legislature (Pen.Code, § 630).

It is now settled law that:  “ ‘When language which is reasonably susceptible of two constructions is used in a penal law ordinarily that construction which is more favorable to the offender will be adopted.’ ․ ‘This rule is particularly pertinent here, where one of the proposed constructions would impose absolute criminal liability․’ ”  (In re Murdock (1968) 68 Cal.2d 313, 317, 66 Cal.Rptr. 380, 437 P.2d 764.)   And in such case:  “The defendant is entitled to the benefit of every reasonable doubt, whether it arise out of a question of fact, or as to the true interpretation of words or the construction of language used in a statute.”  (In re Tartar (1959) 52 Cal.2d 250, 257, 339 P.2d 553.)

“The fundamental rule of statutory construction is that the court should ascertain the legislative intent so as to effectuate the purpose of the law.”   (Our emphasis;  Moore v. Panish (1982) 32 Cal.3d 535, 541, 187 Cal.Rptr. 475, 652 P.2d 32.)

“The courts will not presume ‘that the legislature in the enactment of statutes intends to overthrow long-established principles of law unless such intention is made clearly to appear either by express declaration or by necessary implication.’  (County of Los Angeles v. Frisbie (1942) 19 Cal.2d 634, 644, 122 P.2d 526;  Follette v. Pacific L. & P. Corp. (1922) 189 Cal. 193, 208, 208 P.2d 295.)

“In considering the words of a statute, an appellate court is required to read the statute in the light of the objective sought to be achieved by it, as well as the evil sought to be averted.”  (People v. Carroll (1970) 1 Cal.3d 581, 584, 83 Cal.Rptr. 176, 463 P.2d 400.)  “[C]ourts are bound to maintain the integrity of both statutes [here §§ 630 and 632] if they may stand together.”  (Warne v. Harkness (1963) 60 Cal.2d 579, 588, 35 Cal.Rptr. 601, 387 P.2d 377.)  “All sections of the code must be construed in harmony with each other․”  (People v. McKerney (1967) 257 Cal.App.2d 64, 69, 64 Cal.Rptr. 614.)   In interpreting a statute such as the Act one must keep in mind “the nature and obvious purpose of the statute.”  (Diamond View Limited v. Herz (1986) 180 Cal.App.3d 612, 617, 225 Cal.Rptr. 651.)   In determining the legislative intent and purpose, the best criterion is patently the Legislature's express statement thereof.   And:  “ ‘Once the intention of the Legislature is ascertained it will be given effect even though it may not be consistent with the strict letter of the statute.’ ”  (People v. Ali (1967) 66 Cal.2d 277, 280, 57 Cal.Rptr. 348, 424 P.2d 932.)

It has long been the rule of California that:  “[I]n the construction of statutes, for the purpose of ascertaining the legislative intent, regard is to be had not so much to the exact phraseology in which that intent has been expressed, as to the general tenor and scope of the entire legislative scheme embodied in the Act.”  (Palache v. Pacific Ins. Co. (1871) 42 Cal. 418, 430;  County of Los Angeles v. Frisbie, supra, 19 Cal.2d 634, 639, 122 P.2d 526.)

“The literal meaning of the words of a statute may be disregarded ․ to give effect to manifest purposes that, in the light of the statute's legislative history, appear from its provisions considered as a whole.”  (Silver v. Brown (1966) 63 Cal.2d 841, 845, 48 Cal.Rptr. 609, 409 P.2d 689.)

Under these several rules we find a legislative purpose and intent that Penal Code section 632's proscription of recording of, or eavesdropping upon, a confidential telephone communication is applicable only to a person who is not a party to such communication, or who does so without the consent of such a party.   We so hold.

Our holding gives effect to the express intent and purpose of the Legislature, and it harmonizes the discordant provisions of Penal Code sections 630 and 632 of the Act.

We recognize that there are Court of Appeal cases which could be construed to suggest a contrary result.   But in none of them were the issues we here resolve, raised or considered.  “ ‘[C]ases, of course, are not authority for propositions not there considered.’ ”  (People v. Belleci (1979) 24 Cal.3d 879, 888, 157 Cal.Rptr. 503, 598 P.2d 473.)   And it is suggested that People v. Superior Court (Smith), supra, 70 Cal.2d 123, 74 Cal.Rptr. 294, 449 P.2d 230, somehow disagrees with our holding.   It does not.   The high court there approved section 632's predecessor statute, Penal Code section 653j, which it described as a statute which gives “effective protection against ‘eavesdroppers' without penalizing the innocent use of recording equipment” (p. 134, 74 Cal.Rptr. 294, 449 P.2d 230).

It has become unnecessary to consider other points and arguments of the parties, or to resolve other of the Act's ambiguities.   And the appeal of plaintiffs having become moot, it will be dismissed.

The judgment is reversed, and the superior court is directed to dismiss plaintiff's action.   Plaintiff's appeal having become moot, it is dismissed.

I think the majority opinion is erroneous.   It contradicts not only the plain meaning of the statute, but also an unbroken line of relevant decisional authority which, for understandable reasons, it seems disinclined to discuss.

Penal Code section 632 expressly prohibits eavesdropping or recording, imposing criminal sanctions upon any person who “intentionally and without the consent of all parties to a confidential communication, by means of any electronic amplifying or recording device, eavesdrops upon or records the confidential communication․”  (Emphasis added.)

We are of course bound by the clear terms of the statute, which, it will have been seen, are stated in the disjunctive.   Also axiomatic in statutory construction is the rule that the specific will control the general, at least where not contradictory of it.  (Warne v. Harkness (1963) 60 Cal.2d 579, 588, 35 Cal.Rptr. 601, 387 P.2d 377;  Thurston v. Southern Cal. Public Power Authority (1984) 158 Cal.App.3d 236, 243, 204 Cal.Rptr. 546.)   And, where the Legislature uses different words in the same connection in different parts of the statute (here, the Invasion of Privacy Act, comprising §§ 630 et seq.) it will be presumed that different meanings were intended to attach to such words.  (Twain Harte Homeowners Assn. v. County of Tuolumne (1982) 138 Cal.App.3d 664, 669, 188 Cal.Rptr. 233.)

As a matter of statutory construction, therefore, I am as astonished as I believe the parties to this action will be by the majority's conclusion that “or” means “and”, that “record” has no meaning, that no two-party conversations are protected by the Privacy Act, and that all decisions to the contrary including Warden v. Kahn (1979) 99 Cal.App.3d 805, 160 Cal.Rptr. 471;  Rogers v. Ulrich (1975) 52 Cal.App.3d 894, 899, 125 Cal.Rptr. 306;  and cf. People v. Superior Court (Smith) (1969) 70 Cal.2d 123, 74 Cal.Rptr. 294, 449 P.2d 230;  Ribas v. Clark (1985) 38 Cal.3d 355, 212 Cal.Rptr. 143, 696 P.2d 637, are in error.¹

In Warden v. Kahn, supra, 99 Cal.App.3d at pp. 812–813, 160 Cal.Rptr. 471, this division, pointing out that Section 631 had been held to apply only to eavesdropping and not to recording by a participant to a conversation, went on to explain that:  “Section 632 is a different matter.   Its provisions ‘are much more straightforward than section 631, probably because they are of later origin.’  (Van Boven, supra, 57 Cal.L.Rev. at p. 1203.)   The language of that section applies to any person who ‘intentionally and without the consent of all parties to a confidential communication, by means of any electronic amplifying or recording device, eavesdrops upon or records such confidential communication.’   This language has uniformly been construed to prohibit one party to a confidential communication from recording that communication without knowledge or consent of the other party.  (Forest E. Olson, Inc. v. Superior Court (1976) 63 Cal.App.3d 188 [133 Cal.Rptr. 573] (Second Dist.);  People v. Wyrick (1978) 77 Cal.App.3d 903, 909 [144 Cal.Rptr. 38] (Third Dist.);   see also Rogers v. Ulrich, supra, 52 Cal.App.3d at p. 899 [125 Cal.Rptr. 306] (First Dist.) (dicta).)  This construction is not only upon the language of section 632 itself, but, as Justice Ashby's opinion in Olson notes, upon legislative history and other provisions of the statute.   The language derives from former section 653j (Stats.1963, ch. 1886, § 1, p. 3871), which applied only to a person or agent ‘not a party to the communication,’ who eavesdropped or recorded a confidential communication ‘without the consent of any party.’   Since the quoted language represents practically the only changes from the former statute, the implication of legislative intent to make section 632 applicable to participant recording seems reasonably substantial.   That implication is underscored by section 633.5, which provides that ‘[n]othing in Section 631 or 632 shall be construed as prohibiting one party to a confidential communication from recording such communication for the purpose of obtaining evidence reasonably believed to relate to the commission by another party to such communication of [certain specified crimes].’ ”  (Fns. deleted.)

While I think the reasoning in Warden v. Kahn, supra, 99 Cal.App.3d 805, 813, 160 Cal.Rptr. 471, is iron-clad, it may bear repetition that we there adopted the view expressed in Forest E. Olson, Inc. v. Superior Court, supra, 63 Cal.App.3d 188, 133 Cal.Rptr. 573, that the inclusion of Section 633.5 in the Invasion of Privacy Act is “inexplicable except on the assumption that the Legislature intended at least some portion of the act to apply to participant recording.”  (Emphasis added;  fn. deleted.)

In concluding, then, that Dick's conduct was not actionable because it did not comprise eavesdropping, as opposed to recording, the majority opinion is simply mistaken.   And as to its labored conclusion that “eavesdrops or records” means “eavesdrops and records,” I respectfully remind my colleagues that when statutory language is clear and unambiguous, there is no need for construction and courts should not indulge in it.  (People v. Weidert (1985) 39 Cal.3d 836, 843, 218 Cal.Rptr. 57, 705 P.2d 380;  In re Atiles 1983) 33 Cal.3d 805, 191 Cal.Rptr. 452, 662 P.2d 910.)   To do so, indeed, is mere judicial activism.

This appeal had presented a number of important but unresolved issues under the Privacy Act, including the relationship, if any, between confidentiality and content in recorded messages, and the proper method of assessing damages for repeated violations of the statute.   Our disposition of the appeal on the basis of an interpretation of the statute so remote as not to have been raised or argued at trial, leaves these issues unanswered and the whole statutory construct in ruins.

FOOTNOTES

1.   In the trial court the parties never questioned the applicability of § 632 to participant recording as opposed to eavesdropping by a third party.   The issue was raised by this court and briefed only after oral argument on appeal.People v. Superior Court (Smith), supra, 70 Cal.2d 123, 74 Cal.Rptr. 294, 449 P.2d 230, dealing with former section 653j, was concerned principally with intentionality.   Certainly, however, it recognized that the sanction of that section against one who “intentionally and without the consent of a party to a confidential communication ․ eavesdrops or records a confidential communication” (emphasis added) applied to participant recording.   In Ribas v. Clark, supra, 38 Cal.3d 355, 360, 212 Cal.Rptr. 143, 696 P.2d 637, our high court was unequivocal:  “Additionally the Privacy Act has long been held to prevent one party to a conversation from recording it without the other's consent.”  (Emphasis added.)

ELKINGTON, Associate Justice.

HOLMDAHL, J., concurs.